Constitutional Law

Mrs. Thatcher

Posted on April 08, 2013
Mrs. Thatcher Many British columnists writing about today's sad news -- the death of Mrs. Thatcher (she was of course "Baroness" or "Lady" Thatcher, but she was "Mrs." during the meat of her political career, plus, I think her irreducible Mrs.-iness was part of her identity for her fans, so "Mrs...

This afternoon a 16-year-old girl

Posted on February 18, 2013
This afternoon a 16-year-old girl will appear before a judge in Texas to ask if he would very kindly rule that she she cannot be forced to have an abortion that she does not want. To this, the "choice" principle has led us. I solicit your prayers that this girl be delivered from the atrocity that threatens her...

Justice Scalia attended the Inauguration

Posted on January 22, 2013
Justice Scalia attended the Inauguration yesterday wearing a replica of St. Thomas More's hat, a gift to the Justice from the Thomas More Society of Richmond, Va. More, of course, was a high-ranking lawyer in the administration of King Henry VIII who became a martyr due to his Catholicism and his opposition to his king's break with the ecclesial jurisdiction (not doctrine, technically -

Seidman Prof. Bainbridge takes

Posted on December 31, 2012
Seidman Prof. Bainbridge takes care of the matter here. I could say more - perhaps I will later, esp. about how choosing one at-the-time viable reading of the Constitution over a later, victorious one, as John Adams did re the Sedition Act, does not amount to "ignoring" the Constitution - but, spurred by a tweet from @walterolson, I realized that I have somewhat aggressively not cared what Prof.

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You know, if the Court ends up

Posted on December 10, 2012
You know, if the Court ends up holding that proponents of Prop. 8 lack standing to defend it in federal court, then that nullifies both the 9th Circuit's and Judge Walker's rulings, as those rulings were rendered in "cases" without valid plaintiffs. Federal standing law doesn't necessarily affect state courts, however, so the California Supreme Court's holding that Prop...

The Supreme Court has granted cert

Posted on December 07, 2012
The Supreme Court has granted cert in the two closely-watch "gay rights" cases: the Prop. 8 same-sex marriage case, now called Hollingsworth v. Perry, and the only DOMA case to have yielded Court of Appeals decision thus far, U.S. v. Windsor. Note that in both cases, the Court directed the parties to brief the issue of standing...

Obamacare may return to the Supreme

Posted on November 26, 2012
Obamacare may return to the Supreme Court via the Fourth Circuit: the Court has vacated its earlier dismissal of Liberty University's suit challenging the individual mandate and the abortion-provision mandate, and ordered the Fourth Circuit to hear arguments in it...

2nd Cir. hold Sec. 3 of DOMA unconstitutional,

Posted on October 18, 2012
2nd Cir. hold Sec. 3 of DOMA unconstitutional, using the catch-all of constitutional causes one doesn't know what else to do with -- intermediate scrutiny. Dissent would use rational basis test. Hoping to write more tomorrow.

My post at CatholicismUSA on the

Posted on September 20, 2012
My post at CatholicismUSA on the Romney donor-dinner "47%" vid (known now, though not when I wrote this, to be incomplete, much like your basic James O'Keefe III vids, which at first this was  supposed to be totally unlike).

Very well, Ninomania's portal to

Posted on September 20, 2012
Very well, Ninomania's portal to the Posner v. Scalia fish-slap dance will be the one provided by Ed Whelan. Here you go.

Who leaked?

Posted on July 03, 2012
Who leaked? It's still only speculation, but Time Magazine blogger Adam Sorensen offers here some good reasons to think it was not clerks who leaked details of the Obamacare case (NFIB v. Sebelius) deliberations to reporter Jan Crawford, but could only have been one (perhaps more) of the Justices themselves...

Good news, of a sort: I'm not right

Posted on July 02, 2012
Good news, of a sort: I'm not right all the time. What a burden to set down. On May 23 I wrote that the campaign to make Roberts switch his vote by scaring him with threats of damage to his "historical reputation" and what-not -- this campaign was blisteringly obvious at the time -- wouldn't work...

The Wall Street Journal agrees

Posted on July 02, 2012
The Wall Street Journal agrees with me -- and explains, better than I did or probably could, exactly why the taxing power discovered in the Obamacare opinion is novel and dangerous. Tag: I Hate Being Right All The Time

"It's not Marbury. It's a very

Posted on June 29, 2012
"It's not Marbury. It's a very naughty boy." This must be the week the "Free Hallucinogens for Conservatives" part of the Affordable Care Act kicks in. So many of them have reported sightings of flying lizards, green elephants, diamond skies, silver linings in the Obamacare decision, and resemblances of it to Marbury v...

Apparently Healthcare opinion is

Posted on June 28, 2012
Apparently Healthcare opinion is very thick (American sense). Could be due to multiple partial concurrences/partial dissents etc.  (Of course, may be thick in Brit sense too.)

Kennedy delivers Alvarez (Stolen

Posted on June 28, 2012
Kennedy delivers Alvarez (Stolen Valor Act) opinion. More likely that Scalia or Roberts will deliver Healthcare?

Scotusblog dealing with rumors

Posted on June 28, 2012
Scotusblog dealing with rumors - unsubstantiated and unlikely, TBTG -- that Pres will attend Court session. That could actually raise separation of powers issues imo. Certainly if he were to claim a right to speak more than any other member of the audience -- i...

Last night, a good time was had

Posted on June 28, 2012
Last night, a good time was had by all with Twitter hashtag game #otherSCOTUSpredictions. Mine mostly had to do with opera. You might look them up while waiting.  --  Oh heck: 8-1, Radames's sentence commuted. Scalia dissents bc 8th Am does not have proportionality req + his Celeste was weak ?#otherSCOTUSpredictions Wotan may take Ring from Fafner non obst...

At blogging station. Note: healthcare

Posted on June 28, 2012
At blogging station. Note: healthcare case is not the only one expected today. Quoting Tom Goldstein of Scotusblog, we also expect cases that will decide "whether Congress (1) can make it a crime to lie about a military honor, and (2) create a right to sue for someone who has not been personally injured...

Spooky. Whereas in Casey, the Rehnquist

Posted on June 28, 2012
Spooky. Whereas in Casey, the Rehnquist dissent bore telltale signs of having been written originally as the opinion of the Court, the joint dissent in the healthcare case reads as though it had never been and is not now anything else. What happened here?  (The entire opinion is now online...

I haven't posted in a couple of

Posted on June 28, 2012
I haven't posted in a couple of hours b/c I'm working on a promised op-ed about the healthcare decision. I pause to note that, while Kennedy did the honors of reading the dissent from the bench, it was not one Justice's dissent with three others joining: it's a joint dissent...

Amy Howe (Scotusblog:  "Yes, a

Posted on June 28, 2012
Amy Howe (Scotusblog:  "Yes, a commenter notes that the Chief Justice's opinion starts with a mini-civics lesson -- definitely an awareness that this is one for the ages. Reminded me of his opinion in Snyder v. Phelps, the funeral protesters' case last Term" You know, HLS is one thing, but those Harvard undergrads really should sod off with their "civics lessons...

My prediction about the outcome

Posted on June 28, 2012
My prediction about the outcome was basically right, but I was seriously wrong about, and unfair to, Justice Kennedy. Not only would he strike down the ACA in its entirety, he is raising his dissent to read-from-the-bench status.

A small consolation is that a majority

Posted on June 28, 2012
A small consolation is that a majority holds that the individual mandate would be unconstitutional under the Commerce Clause. This makes no practical difference for Obamacare, since they uphold it under the taxing power, but at least the "Wickard-but-no-further" principle stands, as do Lopez and U...

Of course, if Obamacare remains

Posted on June 28, 2012
Of course, if Obamacare remains politically unpopular, this gives Romney and Republican House and Senate candidates a good issue; and if enough of them get elected, they can do some repeal-and-replace. No affirmance by the Supreme Court means the ACA is beyond legislative alteration...

I was wrong on only one point:

Posted on June 28, 2012
I was wrong on only one point: the renegade was Roberts, not Kennedy.

Posted on June 28, 2012

Scotusblog says: "CJ Roberts joins

Posted on June 28, 2012
Scotusblog says: "CJ Roberts joins the left of the Court." Let's sleuth out all those leftist op-eds, now being deleted and shredded, denouncing him for "judicial activism."

Taking Scotusblog a long time to

Posted on June 28, 2012
Taking Scotusblog a long time to parse, which is NOT good. Just like Casey. As I said.

Individual mandate okayed as a

Posted on June 28, 2012
Individual mandate okayed as a tax.

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